The Importance of Human Rights Discourse to the Study of Gender and Crime - Essay Example

The Importance of Human Rights Dis to the Study of Gender and Crime Introduction The relation between gender and crime is one of the most popular and intriguing subjects in the study of criminology in the recent times. There has always been a fixed mindset amongst the general populace, where one automatically connected criminals with the male gender, thus leading to the creation of a legal system that functioned, keeping the male criminal in mind. A bias, no doubt, there is also no denying the fact that even in the twenty-first century, we live in a world where everything is dictated according to the gender one is born with. A male person is always seen to be more aggressive than his female counterpart (Bess, 2005), and thus according to a stereotyped mindset, it is very natural to associate violent crimes exclusively with male criminals. Criminologists from times immemorial have been dealing the issue of crimes without keeping the gender perspective in focus. There is no doubt that there have always been women who committed crimes, but no importance was relegated to them, marking them as just as an aberration. The general feeling was what Wootton more than 50 years earlier, had expressed, “If men behaved like women, the courts would be idle and the prisons empty” (1959, 32). However, in modern times, specially starting from the 1990s, perspectives have changed and many recent studies pertaining to crime have been made, keeping the gender differences in mind. More than thirty years ago Carol Smart had published her book Women, Crime and Criminology, where she had mentioned that criminology is ‘gender blind’, and therefore as a subject, the study of criminology remained incomplete and unconsummated (Smart, 1976). In fact, before the second wave of feminism came in around 1960, the argument put forward by the poststructuralists that the sociology study till then had been predisposed to generalise the male forbearance, is correct to some extent. A look at the past legal records will reveal that the number of women who came to the court as a defendant, or a witness, or an overseer, is surprisingly ambiguous (Beattie, 1974-5), the exception being for cases that were looked upon as typical feminine ones. Such a mindset arose mainly from the cultural and social stereotypes that were prevalent during the nineteenth, and a greater part of the twentieth century, which led to the court records being interpreted and maintained according to these pre conceived assumptions. This article will take a look at this topic of the deviances in gender crimes and their varying patterns, and will explore the topic gender and crime at a close angle and from a modern perspective. This study will examine various books, journals, and other scholarly articles to find out as to what causes these deviations between a male and female criminal, and will seek to find out the differences that lie behind sex or gender, in the study of criminology. It will also take into account the bias present in social institutions while dealing with female criminals (as claimed by many feminists, that laws are seemingly more male oriented). This article will also delve into various scholarly research articles to find out whether human rights discourse is really important when dealing with the study of gender and crime within the realms of criminology. Body Lynn Goodstein in her article Women, Crime, and Criminal Justice—An Overview tells us that “A gendered analysis of danger and criminality carries with it some ironies... women offenders generally are involved in less serious types of crime than men. Moreover, in many cases of women committing the most serious crimes (such as murdering their domestic partners), their offenses were committed because they believed their lives, or the lives of their children, were in mortal danger” (Goodstein, 2000, 2). An interesting observation, in keeping with what Braithwaite had earlier observed in his research papers that crime “is committed disproportionately by males’ (1989, 44). So it becomes necessary for us at this stage, to take a close look at this branch of criminology and to comprehend the relationship that exists between crime and gender. To proceed in this course we need to first have a clear idea of what is criminology and how pertinent it is to this study of deviance in crime. Criminology as a subject of study: We start our discourse with the most basic question: What is crime? Gottfredson and Hirschi defined crime as “Acts of force or fraud undertaken in pursuit of self interest” (1990, 15). There is another, more absolute and more logical definition of crime, given by Felson, which states that “a crime is an identifiable behaviour that an appreciable number of governments has specifically prohibited and formally punished” (2006, 35). In other words, one commits a crime when he /she breaks laws, that is, that particular person (either male or female) fails to carry out an act that has been administered by the legal processes of that particular country. The person who breaks the law becomes a criminal in the eyes of the judiciary and the legislative mechanisms of that country. Crime rates are known to vary from locality to locality, country to country, and even from nation to nation. It is dependent on many factors, like social, environmental, and sometimes also biological, and the study of such crimes, starting from their onset till finding the root causes, in order to effectively curb them, is known as criminology. The term criminology, loosely referred, can be referred to as the study of crime with an approach that is scientific in nature. Well known criminologists Edwin Sutherland and Donald Cressey defined criminology as “the body of knowledge regarding crime as a social phenomenon. It includes within its scope the processes of making laws, of breaking laws, and of reacting towards the breaking of laws...the objective of criminology is the development of a body of general and verified principles and of other types knowledge regarding this process of law, crime, and treatment”( Sutherland and Cressey, 1960, 3). Here we can summarize some important aspects relevant to the study of criminology. These are: ‘Crime is a social phenomenon’. This sentence refers to the general belief that crime arises from certain social factors. It has been proven by social scientists, and also in our own daily experiences we have seen that problems in the personal front, or disturbances in social relationships or in the surrounding environment, may cause emotional turmoil leading to disruption of the routine activities of that particular person. It is the law that ascertains a crime. To a criminologist this relationship is important as it helps one to understand as to why some laws are more stringent than others and why some laws can be done away with. Sutherland and Cressey in their definition, speak of breaking laws as a part of criminology. This point is especially important for criminologists, for the very simple reason that to effectively curb crimes one must rationalise as to why the laws were broken in the first place. Often individual characteristics and other personal traits may also lead one to become a criminal. Besides this, there are four other important factors which also motivate a person to commit a crime. These are: existence of an attractive target, presence of offenders who are predisposed to commit a crime, lack of an effective monitoring mechanism, and the availability of a suitable and convenient scope for the criminals to strike. Miethe and Meier (1990) in their research papers analysed, that in the lexicon of certain sociological conditions, it is the level of monitoring and the presence of a highly alluring target that determine the choice of crimes. The opportunity or the scope falls into place as the proximity between the offenders and the target increases. In this context Cohen and Felson in their papers in 1979, had hypothesized that men and women both are equally actuated when committing minor crimes. In 1986 Marsh in his research paper on crime had also made the same observation where he stated that given the same opportunities a female would break laws as much as a male member of the society would. These hypotheses lead us directly to our topic of study, which is, gender and crime. Gender and crime: We have already seen that Braithwaite in his papers had commented that, crime is primarily, a male dominated zone. If we look at the crime figures in UK at the start of this century in 2001, we will find that 81% of the prosecuted criminals were male (Home Office, 2002). The prison population in 2001 also showed disparity and only 5% of the total prison population were females. Looking at the 2009 figures, we find that the prison population of male figures are 79158, while female prison population consists of 4296. So 94.8% of the prosecuted criminals are males, as per the recent Home Office survey. However, number of females prosecuted has shown a sharp increase from 2,680 in 1997, to 4296 in 2010, an increase of 60.3%. Comparatively increase in male figures are much less, only 35.5%, from 1997 (58,434) till 2009 (The National Archives- Home Office, Crime, 2010). Thus, an increase in the number of female criminals makes it imperative that the study of crimes involves gender differentiation to understand the differences in the male and female pattern of offenses committed. As Smart had stated in her papers, “ criminology and the sociology deviance must become more than the study of men and crime if it is to play any significant part in the development of our understanding of crime, law and the criminal process and play any role in the transformation of existing social practices”( 1976, 185). Fig 1: Offenders found guilty of, or cautioned for, indictable offences, 2006. The graph shows that male offenders are more than their female counterparts in all sections of crimes. In fact, the statistics showed that 80% of the offenders were male, supporting what Braithwaite had said in 1976. Source: Office for National Statistics, UK, 2008). Before proceeding further here one point must be made clearly explained. There are distinct differences between the term gender and sex. Sex pertains to biological characteristics that a person is born with, male or female. Gender on the other hand mainly refers to the social idiosyncrasies that are generally associated with being a female or male, that is, being a man or a woman. So the term gender includes both male and female members of the society. It is almost impossible to conceive anything such as a gender neutral concept. Since the world is divided into either male or female, any formed concept is bound to emulate either the male or the female perspective. So it is in this regards that the eminent British criminologist Brown raised the feminist concern by saying “the more one seeks to show that male criminologists take leave of their senses when the question Woman looms on the agenda, the more one implies that they are in the right minds when they talk about male crime” (1986, 355). In today’s context, we are much more aware of women and crime, than society was, say, 50 years back. As regular statistics reveal that percentage of prosecuted women criminals are on the rise, there have some attempts to explain this increase. As early as in 1975, Adler and Simon both tried to explain this rise in percentage of women criminals by laying the blame at the door of the 60s-70s feminist movement, which changed the social structure of UK completely (the emancipation theory). Adler tells us that, “As women invade the business world, there is no reason to expect them to be any more honest than men, and to the extent that crime is related to motivation and opportunity, the incidence of such white collar offenses as embezzlement and fraud should achieve par with men” (1975, 252). However, later in 1992, Chesney-Lind and Sheldon in their papers opposed this theory and said that that the wave of feminism ensured that women took more part in the UK workforce from 70s onwards, thus opening up opportunities for them to earn their own living, which in turn should have served to arrest their economic motivations to commit a crime, which in reality did not happen. So the emancipation theory does not serve to explain the increase in percentage of women criminals, leading to the theory that crime targets, motivation factors, scope for committing the crime, and the monitoring agenda, act differently for male and female offenders. Traditionally, criminology as a subject of crime study is more inclined to take up cases of offenses that are singularly male oriented like organised criminal activity, violent crimes, street and gang wars, and lately, sophisticated business related crimes also known as white collar crimes. Often female delinquents were mentioned casually when being compared with their male counterparts, and in order to explain the male behaviour. A female delinquent was looked upon in many cases as acting as a ‘tomboy’, completely ignoring the female perspective of the crime. It has also been seen that “most theories of crime have been developed to explain why men commit crime with little focus on the different dynamics that might affect women as criminals. Yet there are some very substantial differences between male and female criminality that virtually scream out for interpretation” (Goodstein, 2000, 3). This has arisen from the fact that crime in UK has largely been dealt by men, starting from the police force (law enforcement agency), to the legislators (the ones who make laws), to the judiciary (who pass judgements and penalise offenders for breaking any law). It has been seen that such perceived differences based upon certain preconceived notions, that led the authorities to believe that a woman cannot commit a serious crime had often resulted in less arrests and less prison sentences for female convicts. Judiciary also tended to deal with women criminals more leniently owing to the ‘chivalry’ factor. So the crime statistics that we see today in most cases do not reveal the actual figures of female: male crime ratio. As Garthine Walker points out “quantification shows us time and again that women constituted a minority of those prosecuted for most categories of crime. What tends to happen that women are counted, and being a minority of offenders are subsequently discounted as unimportant” (2003, 8). A female crime differs from a male crime owing to certain biological and sociological factors. In most of the cultures that we see worldwide, girls are more protected than boys within the family boundaries, and stay under more parental supervision or surveillance. This accounts for women committing less violent crimes in streets, when compared to their male counterparts. Women work less in offices, and also occupy less important positions than men, so get less scope for committing large scale official frauds or white collar crimes. Burglary involves moving around in the night and a female burglar under such circumstances would attract immediate attention, which may lead to a situation where she may be bodily harmed too. Rearing children also tend to make women more of a caregiver and thus more family oriented, and often sociologists and criminologists have noticed, that if women commit violent crimes, it is more likely that the victims will be members of her own family. So we find that the differences in pattern between men and women crimes arise mainly from the socio-cultural practices that are seen around us, and which gives women less scope to commit crimes. However if a woman is caught committing a crime that goes against their stereotyped roles, like violent street crimes, or gang wars, then it is likely that she will be accorded harsher punishment than her male counterpart. Women are generally thought to be petty criminals, restricted to ship lifting and prostitution. Here in the latter case, we see the hypocrisy of the patriarchal society that punishes and victimises women for taking money for sex, but allows a man to go scot free who has been caught paying money for the same. This leads us to another very serious topic, victimization of women, which also falls under the scope of criminalisation (gender and crime). Victimization of women: Till the late 1970s not much was in regards of child sex abuse, wife beating, or marital rape cases. The problem, though acknowledged to be present and was known to be of a large magnitude, was not dwelled upon by the law enforcement agencies, as these crimes were of ‘personal’ domestic type, where the victims were known to the criminals, and often both were part of the same family, and so they did not fit into the framework of a ‘real’ crime. It was in the 1970s that the seriousness of the whole issue was realised, owing to repeated appeals by the feminists and others working in the line of criminology, and ‘Victimology’ as a separate stream of crime studies was started. In 1971 Fattah, a Canadian criminologist, wrote a book called La Victime: est-elle Coupable? (Is the Victim to Blame?), and another book called Victim and His Criminal: A Study into Functional Responsibility by Schafer in 1978, shed light into an area heretofore unexplored and brought the whole issue of victimisation into the limelight. From the various studies, one pertinent issue stands out very clearly, and that is “violence against women is not simply a reflection of a “sick personality” or “psychological illness,” but rather is a reflection of structural gender dynamics, informed by racial and class positions” (Goodstein, 2000, 5). Besides physical abuse there are also certain forms of non-physical abuses like verbal abuse, or even corporate abuse, where often large corporate firms take decisions that have harmed women in retrospect. Victimization is an important issue owing to the fact that is very closely connected to the gender and crime topic. It has often been noticed that women criminals who are perpetrators of some homicide or a violent crime, are themselves first victims of abuse, and the crime committed was in self defence or in retaliation. Chesney-Lind had collected many figures and data, while researching into the subject of gender and crime, and had come to the conclusion in her paper “‘Out of Sight, Out of Mind’: Girls in the Juvenile Justice System,” that girls are more likely to be sexually abused as children within the purports of their own home, and an investigation into the imprisoned women have shown that a majority of these women have been sexually or physically abused as children. So the connection is very clear, women are victims first and criminals later, in majority of researched cases. Lisa Sanchez in her papers brings into limelight the extent of victimisation of women involved in the process of prostitution. In her papers Sanchez gives us examples of how prostitution is a vicious cycle of victimisation, criminalisation and again victimisation. She narrates of accounts where young girls run away from home to escape sexual and physical abuse at home only to enter the world of prostitution where rampant physical abuse becomes the order of the day. Sanchez also shows that prostitutes while being victimised as sex workers, also are often forced to take part in criminal activities to add to their meagre income. These women do not get help from any of the social institutions, which look upon as them as criminals who have forfeited their rights to be viewed as legitimate victims (Sanchez in “Gender Troubles: The Entanglement of Agency, Violence, and Law in the Lives of Women in Prostitution,” and Chesney-Lind, in Women, crime, and criminal justice- Original Feminist Readings) Often women, especially in conservative societies, are also forced into committing crimes under the coercive forces of their male counterparts and act as accomplices under pressure, in many of the nefarious crimes. Given below are statistical figures that show the extent to which females become victim of abuse at the domestic front in UK. In 2007/08, the number of domestic violence incidents experienced by women was five times greater than for men; 85 per cent of victims of this type of violence were women compared with 15 per cent who were men” (Office for National Statistics- UK, 2008). In 2010, “Based on the 2009/10 BCS, seven per cent of women aged 16 to 59 were victims of domestic abuse in the past year compared with four per cent of men....domestic abuse, experienced by five per cent of women and three per cent of men in year. Prevalence of (non-sexual) family abuse was lower with two per cent of women and one per cent of men aged 16 to 59...”( Flatley, et al, Home Office, 5). Looking at these figures and seeing the close connection between victimisation and crime, it now becomes imperative that we view the whole issue of gender and crime from the perspective of human rights. Importance of Human Rights Discourse to the Study of Gender and Crime: Rampant abuse of women are existent in almost all the nations worldwide, and as we have earlier seen in this study, most of the social institutions like the law enforcement agencies or the legislative branches, are mostly male oriented. So there exists an unequal power balance between the male and female members of the society, which reveals itself in some of the most bizarre customs and practices that we see throughout the world, often resulting in deaths of the women concerned. “These practices are wide-ranging and include such violations as rape as an instrument of warfare, dowry deaths, genital circumcision, sexual slavery, and economic deprivation” (Goodstein, 5). Each nation and each culture has its own diverse form of custom, which in practicality results in the abuse of women in the name of tradition, and the diverse nature of such practices makes it almost impossible to make applicable a uniform human rights concept, worldwide. One has to keep in mind the differences in the social settings and the legal processes, already in place in that country. Often in many countries it has been noticed that coloured women become victims of double discrimination, where they are imprisoned for even possessing even small quantities of drugs for being a woman, and on top of that they are given further stringent punishments (increase in the imprisonment term) for being coloured. So the problem goes deeper than just creating certain universal human rights programs. One will have to first delve into the social structure and historical background of the particular culture and country, to understand the mindset of the people. A complete comprehensive study of human rights involves a study in national demographics, religious and philosophical ideologies of that particular country, the prevalent political atmosphere, history, ethics and social structure, and of legal matters related to international laws, criminal and constitutional laws at the basic national level. UNESCO tells us that “human rights are neither a new morality, nor a lay religion and are much more than a language common to all mankind. They are requirements which the investigator must study and integrate into his knowledge, using the rules and methods of his science, whether this is philosophy, the humanities or the natural sciences, sociology or law, history or geography”( UNESCO, 7). A discourse of human rights thus would help one to understand the prevailing criminal situation in the country related to gender differentiation, in a correct perspective. It would help one to understand the extent of female victimisation, and reasons behind it. It would also help one to look beyond the realms of crime and criminal activities, and view this complex topic of gender, crime and victimisation from a correct legal, ethical, social and political dimension. The term ‘rights’ within the purview of human rights refer to “wider concepts of claims, i.e., wants, desires, aspirations people have and express...those claims which are also supported by or in accord with some objective standards (or some general theory), whether those of a code of morality or ethical theory, or those of political system or political theory, or those of a legal system, are usually and aptly called ‘rights’ (Dowrick, 8). Thus this topic which deals with violent abuse of women rights has to be dealt with keeping in mind the multidimensional aspects that cover legal, to moral, to political claims. There has to be good co-ordination between the governmental and local community organisations, to protect victims of domestic abuse, and the judiciary also needs to review cases where for the same crime a female offender gets a harsher sentence. Female prisoners need to have more well co-ordinated prison programs and other work release chances, like their male counterparts. Coloured women facing gender bias and racial bias need to be given additional protection. All such positive changes will be effective only if the society, legislative, and judiciary institutions take part in the developmental program as a whole. Understanding the need for such changes and the means to initiate such changes, are possible only when one is well versed in human rights discourses, and understands the complex relations that exists in the modern socio-political systems worldwide. Conclusion Gender and crime along with victimisation, as part of the criminology study course, is very important in today’s context. Women facing abuse as girls (a victim), in later life often resort to criminal activities (becomes a criminal), thus making the connection between these two very deep rooted. Simply studying this relationship as a branch of criminology will help one to understand the problem, but one needs to view the entire scenario from the context of human rights, to understand how complex the whole system is and how the entire socio-political scenario needs a complete overhauling to tackle the problem effectively and to eradicate it right from the roots. Bibliography Adler, F. 1975. Sisters in Crime. New York: McGraw-Hill. 252. Beattie, J. (1974-5). the criminality of women in eighteenth century England; Journal of social history, 8, 80-116. Brown, B. 1986.women and crime: the dark figures of criminology’, economy and society, 15(3). 355-402. Braithwaite, J. 1989. 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